FISHING IN COURT

Assume that the National Marine Fisheries Services does not enjoy getting sued, that New England fishermen are not hell-bent on destroying the resource that sustains them and that environmental groups and judges would prefer not to be the targets of angry protesters and irate politicians. The conclusion, then, can only be that something has gone wrong with federal regulation of commercial fishing.

That certainly was the conclusion reached by senators, including Maine’s Olympia Snowe, at a Commerce Committee hearing Thursday on fisheries. The industry, the resource and the environment are governed more by lawsuit than by science.

It is convenient to blame NMFS. This branch of the Commerce Department is, after all, currently the defendant in 104 active complaints. A small agency by federal standards, it issues more regulations than all but three vastly larger agencies – the Environmental Protection Agency, the Federal Communications Commission and the Federal Aviation Administration.

NMFS was created by Congress in 1871. It was initially called the United States Commission of Fish and Fisheries and charged, clearly and explicitly, with promoting and developing the nation’s fishing industry. That NMFS now describes itself as “the first federal agency concerned with natural resource regulations” is evidence of mission creep, imposed from without more than engineered from within, for which the agency has not been equipped.

William Hogarth, assistant administrator for fisheries at the National Oceanic and Atmospheric Administration, which oversees NMFS, told the senators what they’ve heard before – the complex laws governing fishing, resource conservation and endangered species overlap and sometimes conflict. The only place conflicting laws can go is to court.

And, for the last quarter century, they have, with increasing frequency, hardship and unsatisfactory results. The most recent trip to court, in which five credible environmental groups sued NMFS for failing to uphold resource-protection laws, was resolved not by science but by a judge with no particular expertise in fisheries science.

Assume that U.S. District Court Judge Gladys Kessler does not want to destroy the livelihoods of thousands of New England fishing families and the conclusion of something gone wrong becomes even stronger.

Judge Kessler now is being asked by a broad-based coalition of fishermen, the Commerce Department, the Conservation Law Foundation (a plaintiff in the lawsuit) and members of Congress to modify her ruling, to give fishermen at least enough days at sea and enough open fishing grounds to stay in business.

That modification sought – cutting already greatly reduced days-at-sea by 20 percent instead of the 35 percent ordered by Judge Kessler – and the usual packages of emergency assistance that always follow these restriction will only buy time. It was Congress that created the overlapping and conflicting laws that has put the fishing industry in court. Recognizing that is the first step to getting it out.